Citation Nr: 0701047
Decision Date: 01/12/07 Archive Date: 01/24/07
DOCKET NO. 05-11 827 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an effective date earlier than January 1, 2004
for payment of additional compensation benefits for the
veteran's spouse.
ATTORNEY FOR THE BOARD
J. Rose, Counsel
INTRODUCTION
The veteran had active military service from June 1970 to
August 1977.
This appeal arises before the Board of Veterans' Appeals
(Board) from a February 2004 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
which adjusted the veteran's disability benefits effective
December 8, 2003, to account for the addition of the
veteran's spouse. The veteran withdrew his request for a
hearing in April 2005.
FINDINGS OF FACT
1. The veteran married L. P. on May [redacted], 1995.
2. The veteran's claim for additional compensation benefits
based on a dependent spouse was received by the RO on January
8, 1999.
3. The first day of the month following the date the written
claim for additional compensation benefits based on a
dependent spouse was received is February 1, 1999.
CONCLUSION OF LAW
An effective date of February 1, 1999, but no earlier, for
payment of additional compensation benefits for the veteran's
dependent spouse is warranted. 38 U.S.C.A. §§ 1115, 5102,
5107, 5110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.31,
3.204, 3.216, 3.401 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Analysis
For the reasons set forth below, the Board concludes that the
veteran is entitled to an effective date of February 1, 1999
for payment of additional compensation benefits for his
spouse.
Except as otherwise provided, the effective date of an award
of compensation based on an original claim, a claim reopened
after a final disallowance, or a claim for increase will be
the date of receipt of the claim or the date entitlement
arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400. An award of additional compensation for dependents
based on the establishment of a rating in the percentage
specified by law for that purpose shall be payable from the
effective date of such rating, but only if proof of
dependents is received within one year from the date of such
rating. 38 U.S.C.A. § 5110(f). The effective date of the
award of any benefit or increase by reason of marriage or the
birth/adoption of a child shall be the date of that event if
proof is received by the Secretary within a year from the
date of marriage, birth or adoption. 38 U.S.C.A. § 5110(n).
Regarding additional compensation for dependents, the
effective date will be the latest of the: (1) claim date; (2)
date the dependency arises; (3) effective date of the
qualifying disability rating provided evidence of dependency
is received within a year of notification of such rating
action; or (4) date of commencement of the veteran's award.
38 C.F.R. § 3.401(b). The "date of claim" for additional
compensation for dependents is the date of the veteran's
marriage or birth/adoption of a child, if evidence of the
event is received within a year of the event; otherwise, the
date notice is received of the dependent's existence, if
evidence is received within a year of notification of such
rating action. 38 C.F.R. § 3.401(b)(1).
Pertinent records show that the veteran has been in receipt
of VA disability compensation benefits since 1981. The
veteran's combined evaluation has been 80 percent from
September 1, 1981 and 60 percent from December 1, 1986. He
was awarded additional compensation for a spouse, S.D.;
however benefits were terminated when they divorced in 1992.
Thereafter, a letter was sent to the veteran in March 1998
in which he was informed that a veteran is subject to a
reduction in benefits because he received both VA
compensation and military benefits. The letter also noted
that additional benefits were included for his child and that
he was notify VA of any changes in the number or status of
his dependents.
The record contains no evidence pertaining to the veteran's
marital status until the veteran, in a written statement
dated December 30, 1998, specifically informed VA that his
dependents were his spouse and daughter. This letter was
received by VA on January 8, 1999. In a written statement
dated December 3, 2003, the veteran asked VA to update their
records regarding his spouse. The veteran also sent a
certified copy of his marriage license, which reflected the
date of marriage was
May [redacted], 1995.
A letter was sent to the veteran in February 2004 notifying
him that he had been awarded additional benefits for his
dependent spouse effective from January 1, 2004. The veteran
submitted a statement in March 2004 in which he requested
that his case be reviewed to determine whether he was
entitled to a retroactive payment for his spouse.
Applying the facts of the case to the pertinent law, the
Board finds that VA was notified of the dependent's existence
upon receipt of the veteran's letter dated December 30, 1998,
or January 8, 1999. It is clear from the veteran's letter
that the veteran was married and was informing VA that both
his spouse and child were his dependents. Therefore, the
effective date for the additional spouse would be February 1,
1999. However, the veteran is not entitled to an effective
date earlier than February 1, 1999. Although he was married
on May [redacted], 1995, there is no evidence that the veteran
notified VA of this change in his marital status prior to
January 8, 1999.
Thus, the preponderance of the evidence demonstrates that the
earliest possible effective date for payment of additional VA
disability compensation benefits based on his marriage to L.
P. is February 1, 1999.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), enacted on
November 9, 2000, emphasized VA's obligation to notify
claimants what information or evidence is needed in order to
substantiate a claim, and it affirmed VA's duty to assist
claimants by making reasonable efforts to get the evidence
needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107
(West 2002 & Supp. 2005); see Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002). In August 2001, VA issued regulations
to implement the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2006).
There are some claims to which VCAA does not apply. Livesay
v. Principi, 15 Vet. App. 165, 178 (2001). It has been held
not to apply to claims based on allegations that VA decisions
were clearly and unmistakably erroneous. Id. It has been
held not to apply to claims that turned on statutory
interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2
(2000). In another class of cases, remand of claims pursuant
to VCAA is not required because evidentiary development has
been completed. Wensch v. Principi, 15 Vet. App. 362, 368
(2001); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).
Although the Court said in Wensch that VCAA did not apply in
such cases, it may be more accurate to say that VCAA applied,
but that its notice and duty to assist requirements had been
satisfied. When it is clear that there is no additional
evidentiary development to be accomplished, there is no point
in remanding the case. Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991).
During the drafting of the VCAA, Congress observed that it is
important to balance the duty to assist against the futility
of requiring VA to develop claims where there is no
reasonable possibility that the assistance would substantiate
the claim. For example, wartime service is a statutory
requirement for VA pension benefits. Therefore, if a veteran
with only peacetime service sought pension, no level of
assistance would help the veteran prove the claim; and if VA
were to spend time developing such a claim, some other
veteran's claim where assistance would be helpful would be
delayed. 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000)
(statement of Senator Rockefeller).
This case involves the application of law to certain facts -
such as the effective date for a combined rating higher than
30 percent and the date when information, which was needed to
award additional compensation for the veteran's wife, was
received by the RO - and those facts are already established
by the evidence now of record and are not in dispute.
Collecting additional evidence would not be productive or
helpful to the veteran's appeal. See, Smith 14 Vet. App.
227, 231-2 (2000). Thus, because the law as mandated by
statute, and no further development of evidence is
dispositive of this appeal, VCAA requirements are satisfied.
Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis
v. Brown, 6 Vet. App. 426, 429- 30 (1994) (where the
operation of law is dispositive, the appeal must be
terminated because there is no entitlement under the law to
the benefit sought.).
ORDER
An effective date of February 1, 1999, but no earlier, for
payment of additional compensation benefits for the veteran's
spouse is granted.
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CONSTANCE B. TOBIAS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs